Mejak v. Granville

SUPREME COURT OF ARIZONA
En Banc

JEREMY MEJAK, ) Arizona Supreme Court
) No. CV-05-0299-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 05-0156
THE HONORABLE WARREN J. )
GRANVILLE, JUDGE OF THE SUPERIOR ) Maricopa County
COURT OF THE STATE OF ARIZONA, ) Superior Court
in and for the County of ) No. CR 2003-026156-001 DT
Maricopa, )
)
Respondent Judge, )
) O P I N I O N
STATE OF ARIZONA ex rel. ANDREW )
THOMAS, Maricopa County Attorney, )
)
)
Real Party in Interest. )
)
__________________________________)

Petition for Review from Order of the Court of Appeals,
Division One

Order of the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge

VACATED AND REMANDED

________________________________________________________________

MICHAEL TERRIBILE, P.C. Phoenix
By Michael Terribile
Attorney for Jeremy Mejak

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Arthur G. Hazelton, Jr.
Attorneys for State of Arizona
________________________________________________________________

R Y A N, Justice
¶1 In Arizona, a person “offering or soliciting sexual

conduct with another person knowing or having reason to know

that the other person is a minor” can be charged with “luring a

minor for sexual exploitation” (“luring”) under Arizona Revised

Statutes (“A.R.S.”) section 13-3554(A) (Supp. 2003). “It is not

a defense to a prosecution . . . [for luring a minor if] the

other person was a peace officer posing as a minor.” Id. § 13-

3554(B).

¶2 This case requires us to decide whether luring is

committed when the person solicited is an adult posing as a

minor, but is not a peace officer. We hold that under such

circumstances, a person cannot be charged with luring. 1

I

¶3 In April 2003, a local television news reporter,

pretending to be a thirteen-year-old girl, engaged in Internet

“chat room” discussions as part of an investigation into how the

Internet can be used to lure minors for sexual contact. The

petitioner, Jeremy Mejak, chatted online with the reporter,

believing her to be a thirteen-year-old girl; and arranged to

1
We note, however, that in such a situation, a person could
be charged with attempted luring or attempted sexual conduct
with a minor. See State v. Carlisle, 198 Ariz. 203, 205, ¶ 1, 8
P.3d 391, 393 (App. 2000).

- 2 -
meet her for purposes of engaging in sexual conduct. 2 When Mejak

arrived at the agreed-upon location, he was greeted by news

cameras. The police were given videotapes of the confrontation

and transcripts of the online conversations. A grand jury

indicted Mejak for violating A.R.S. § 13-3554.

¶4 Mejak filed a motion to dismiss, arguing that the

statute did not criminalize his conduct because there was no

minor or peace officer lured, and therefore the indictment was

insufficient as a matter of law. See Ariz. R. Crim. P. 16.6(b)

& cmt. If a defendant can admit to all the allegations charged

in the indictment and still not have committed a crime, then the

indictment is insufficient as a matter of law. See, e.g., U.S.

v. Sampson, 371 U.S. 75, 76-79 (1962); Lowe v. State, 579 S.E.2d

728, 729-30 (Ga. 2003) (quoting Dunbar v. State, 432 S.E.2d 829,

831 (Ga. Ct. App. 1993)); State v. Green, 194 N.E. 182, 184

(Ind. 1935); State v. Anderson, 410 P.2d 230, 233 (Or. 1966); 42

C.J.S. Indictments & Informations § 180 (1991).

¶5 The superior court denied the motion, reasoning that

the intent of the statute was “to criminalize the offer of

sexual conduct with a person a Defendant believes to be a

minor.” Relying on State v. Carlisle, 198 Ariz. 203, 207, ¶ 17,

8 P.3d 391, 395 (App. 2000), the court also found that it is no

2
For purposes of these proceedings, Mejak admits the facts
as found by the grand jury.

- 3 -
defense that the person “lured” is not a minor. Mejak then

filed a petition for special action with the court of appeals,

which declined jurisdiction without comment.

¶6 We granted Mejak’s petition for review because it

presents an issue of statewide importance and first impression.

We have jurisdiction under Article 6, Section 5(3), of the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

II

¶7 Determining whether the superior court erred in

denying Mejak’s motion to dismiss requires us to interpret

A.R.S. § 13-3554. Issues of statutory interpretation are purely

legal issues, which we review de novo. Dressler v. Morrison,

____ Ariz. ____, ¶ 11, 130 P.3d 978, 980 (2006) (citing State ex

rel. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, 523, ¶ 7, 115

P.3d 116, 117 (2005)).

¶8 When interpreting a statute, we make every effort to

give effect to the intent of the legislature. State v. Lamar,

210 Ariz. 571, 575, ¶ 16, 115 P.3d 611, 615 (2005) (quoting

Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043

(1988)). The best indicator of that intent is the statutory

language. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505

(1997). When the language of the statute is clear and

unambiguous, this Court need go no further to ascertain the

legislative intent. State ex rel. Romley v. Hauser, 209 Ariz.

- 4 -
539, 541, ¶ 10, 105 P.3d 1158, 1160 (2005) (quoting State v.

Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003)).

¶9 Also, in interpreting a statute, this Court must, to

the extent possible, give effect to every provision in the

statute. See State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962,

964 (1994). We must interpret the statute so that no provision

is rendered meaningless, insignificant, or void. State v.

Superior Court for Maricopa County, 113 Ariz. 248, 249, 550 P.2d

626, 627 (1976); see also Ruiz v. Hull, 191 Ariz. 441, 450, ¶

35, 957 P.2d 984, 993 (1998).

¶10 With these principles in mind, we first turn to the

language of A.R.S. § 13-3554 and then examine the parties’

arguments regarding its interpretation.

A

¶11 Section 13-3554 states:

A. A person commits luring a minor for sexual
exploitation by offering or soliciting sexual
conduct with another person knowing or having
reason to know that the other person is a
minor.

B. It is not a defense to a prosecution for a
violation of this section that the other person
was a peace officer posing as a minor.

C. Luring a minor for sexual exploitation is a
class 3 felony, and if the minor is under
fifteen years of age it is punishable pursuant
to § 13-604.01, subsection I.

We conclude that the language of the statute requires that the

- 5 -
person lured be a minor or a peace officer posing as a minor. A

brief review of the three subsections of A.R.S. § 13-3554

supports this conclusion.

¶12 First, subsection (A) requires that the person charged

with the crime of luring “know[] or hav[e] reason to know that

the [person being lured] is a minor.” A.R.S. § 13-3554(A)

(emphasis added). The use of the phrase “is a minor” suggests

that the crime cannot be committed without the luring of an

actual minor. Second, subsection (B) prevents a defendant from

escaping criminal responsibility if the person lured is “a peace

officer posing as a minor.” A.R.S. § 13-3554(B). Read in

conjunction with subsection (A), this provision further supports

the conclusion that unless the purported victim is a peace

officer posing as a minor, the crime of luring requires that an

actual minor be lured.

¶13 Third, subsection (C), the penalty provision of A.R.S.

§ 13-3554, states that “if the minor is under fifteen years of

age” the crime is punishable under the provisions of A.R.S. §

13-604.01(I) (Supp. 2003), 3 a subsection of the sentencing

3
Section 13-604.01(I), provides that “a person . . . who
stands convicted of . . . luring a minor for sexual exploitation
pursuant to § 13-3554 is guilty of a class 3 felony and shall be
sentenced to a presumptive term of imprisonment for ten years.
The presumptive term may be increased or decreased by up to five
years.” See Boynton v. Anderson, 205 Ariz. 45, 47, 49, ¶¶ 6,
15, 66 P.3d 88, 90, 92 (App. 2003).

- 6 -
statute for Dangerous Crimes Against Children. (Emphasis

added.) The use of the phrase “the minor” in subsection (C)

signals the legislature’s intention that, unless subsection (B)

applies, the statute is violated only when an actual minor is

lured. Thus, when § 13-3554 is considered as a whole, the

language requires that the person lured be a minor, or a peace

officer posing as a minor, before a person can be charged with

luring a minor for sexual exploitation.

B

¶14 The State argues that Mejak can be charged under the

plain language of A.R.S. § 13-3554 because he had “reason to

know that the person was a minor.” The State also contends that

this crime is like a preparatory offense and all of the elements

were completed during Mejak’s online discussions with the person

he believed to be a thirteen-year-old girl. Based on the

language of the statute, we disagree with both propositions.

¶15 The State’s first argument equates the “having reason

to know” language in subsection (A) with “believing.” Such an

interpretation of the statute would require us to conclude that

Mejak could be convicted of luring if he believed that a fact

necessary for the commission of the crime indeed existed, when

in reality it did not. Although a person may subjectively

believe, as Mejak did, something that is not true, it is

- 7 -
entirely different to have knowledge or a reason to know a fact. 4

We cannot agree with the State’s position that a defendant may

be held responsible for a completed offense, rather than a

preparatory offense, when the facts required for the commission

of the completed offense are not present, even though the

defendant may believe so.

¶16 State v. McElroy, 128 Ariz. 315, 625 P.2d 904 (1981),

so teaches. We stated there “that the defendant could never

have been convicted of possession of dangerous drugs” when the

material he possessed was not illegal, even though he believed

it to be. Id. at 317, 625 P.2d at 906. Rather, the defendant

could be charged only with attempted possession. Id. at 316-17,

628 P.2d at 905-06. Likewise, A.R.S. § 13-3554(A) does not

support the interpretation the State urges; it requires that a

defendant know or have reason to know the person being lured is

a minor. Subsection (A) says nothing about what a defendant may

4
In the context of this statute, the best example of a
defendant “knowing” that the person lured is a minor is when the
defendant solicits or offers sexual conduct to a person whom he
personally knows is a minor. On the other hand, a defendant
would “have reason to know” that the person being lured is a
minor if all the attendant circumstances would make a reasonable
person aware that the person lured is a minor. The inclusion of
the “having reason to know” language prevents a defendant from
claiming that he did not know that he was luring a minor when
the surrounding circumstances would reasonably make him aware of
that fact. Both situations require that an actual minor, or
peace officer posing as a minor, is lured before the statute has
been violated.

- 8 -
believe.

¶17 Moreover, if we concluded that subsection (A)

permitted the State to pursue the charge against Mejak,

subsection (B) would be superfluous – a result we must avoid.

See Ruiz, 191 Ariz. at 450, ¶ 35, 957 P.2d at 993; Pitts, 178

Ariz. at 407, 874 P.2d at 964; Superior Court for Maricopa

County, 113 Ariz. at 249, 550 P.2d at 627. If the statute could

be violated by luring any adult who poses as a minor, it would

be unnecessary to except peace officers posing as minors. The

inclusion of subsection (B) necessarily suggests that the

legislature realized that the crime of luring under subsection

(A) could not be committed when the person lured was any adult

posing as a child. See Champlin v. Sargeant, 192 Ariz. 371,

374, ¶ 16, 965 P.2d 763, 766 (1998) (discussing the doctrine of

expressio unius est exclusio alterius – the expression of one

item implies the exclusion of others). Therefore, to permit law

enforcement to investigate Internet predation, the legislature

found it necessary to include subsection (B). When subsections

(A) and (B) are read together, their language logically leads to

the conclusion that Mejak could be charged under A.R.S. § 13-

3554 only if the person he lured was a minor or a peace officer

posing as a minor.

¶18 We also cannot agree with the State’s second point

that this crime is equivalent to a preparatory offense. As the

- 9 -
name implies, a preparatory offense is committed in preparation

for committing a completed crime. See A.R.S. §§ 13-1001 to

-1006 (2001). In the context of A.R.S. § 13-3554, however, the

crime is complete when a person offers or solicits sexual

conduct with a minor or a peace officer posing as a minor. Id.

§ 13-3554(A), (B).

C

¶19 Mejak asserts that he cannot be charged with luring

because the reporter was not a minor, and therefore a factual

impossibility exists. The State claims there is no such defense

in Arizona. To support its position, the State cites McElroy,

Carlisle, and State v. Vitale, 23 Ariz. App. 37, 530 P.2d 394

(1975). All of these cases, however, dealt with “attempt”

charges rather than charges for completed crimes. See McElroy,

128 Ariz. at 316, 625 P.2d at 905 (stating that the defendant

was charged with “‘attempt’ to possess dangerous drugs”);

Carlisle, 198 Ariz. at 206, ¶ 8, 8 P.3d at 394 (stating that the

defendant was indicted for “attempted sexual conduct with a

minor under the age of fifteen”); Vitale, 23 Ariz. App. at 38,

530 P.2d at 395 (stating that the defendant was charged with

“attempting to receive stolen property”).

¶20 An attempt is substantively different from a completed

crime because an attempt to commit an offense does not require

that all the elements be present for the commission of the

- 10 -
offense. Attempt requires only that the defendant intend to

engage in illegal conduct and that he take a step to further

that conduct. See A.R.S. § 13-1001; State v. Harvill, 106 Ariz.

386, 388, 476 P.2d 841, 843 (1970) (citing State v. McCullough,

94 Ariz. 209, 382 P.2d 682 (1963)). The ultimate crime need not

be completed, or even possible, for a defendant to be criminally

responsible for an attempt to commit a crime. McElroy, 128

Ariz. at 317, 625 P.2d at 906.

¶21 The State, however, charged Mejak not with attempt,

but with the completed offense of luring. But a defendant

cannot be held criminally responsible for a completed crime when

it is impossible to commit the offense. See id.; see also

People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (stating that a

defendant cannot be charged with anything more than attempt if

he possesses the “requisite criminal intent,” but the facts are

such that an element of the crime is lacking). The luring

statute requires that an actual minor or a peace officer posing

as a minor be lured. Because, the person Mejak lured was not a

minor or peace officer posing as a minor, he could not violate

the criminal statute under which he was indicted.

¶22 Accordingly, we conclude that the indictment is

insufficient as a matter of law to charge Mejak with the crime

of luring. Therefore, the trial court should have granted the

motion to dismiss. Ariz. R. Crim. P. 16.6(b), (d); cf. State v.

- 11 -
Schneider, 135 Ariz. 387, 388-89, 661 P.2d 651, 652-53 (App.

1983) (observing that ordinarily a dismissal is without

prejudice).

III

¶23 For the above reasons, we vacate the order of the

superior court denying Mejak’s motion to dismiss, and remand to

the superior court with instructions to dismiss the indictment.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

- 12 -